Minnesota Federation of Teachers v. Nelson

• Decision Date: 02 July 1990
• Docket Number: Civ. No. 4-87-211.
• Citation: 740 F. Supp. 694
• Parties: MINNESOTA FEDERATION OF TEACHERS on behalf of their organization and members; Richard M. Mans, President Minnesota Federation of Teachers, Taxpayer, Plaintiffs, v. Thomas A. NELSON, Commissioner of the Minnesota Department of Education, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

740 F. Supp. 694

MINNESOTA FEDERATION OF TEACHERS on behalf of their organization and members; Richard M. Mans, President Minnesota Federation of Teachers, Taxpayer, Plaintiffs, v. Thomas A. NELSON, Commissioner of the Minnesota Department of Education, et al., Defendants.

Civ. No. 4-87-211.

United States District Court, D. Minnesota, Fourth Division.

July 2, 1990.

COPYRIGHT MATERIAL OMITTED

Roger A. Peterson, Ron Marks, and Peterson, Engberg & Peterson, Minneapolis, Minn., for plaintiffs.

Cindy L. Lavorato, Sp. Asst. Atty. Gen., St. Paul, Minn., for defendants Com'r of Educ. and President of the State Bd. of Educ.

Robert J. Sheran, James P. McCarthy, and Lindquist & Vennum, Minneapolis, Minn., for defendants Bethel College, Concordia College Moorhead, Augsburg College, St. John University, College of St. Catherine, Hamline University and Macalester College.

R. Scott Miller, Jr., Volunteer Atty. for Amicus Minnesota Civil Liberties Union, St. Paul, Minn. and Judith A. Cook, Minnesota Civil Liberties Union, Minneapolis, Minn.

ORDER

DOTY, District Judge.

This matter is before the court on the remaining parties' cross-motions for summary judgment. Based on the briefs and arguments of counsel, and the record, file and proceedings herein, defendants' motion will be granted in part and denied in part and plaintiff Richard Mans' motion will be denied.¹

BACKGROUND

Plaintiff brings this action as a taxpayer challenging the constitutionality of the Post-Secondary Enrollment Options Act, Minn.Stat. § 123.3514 (1988 and Supp.1989) (the "Act" or "PSEOA"), on the grounds that it violates the establishment clause of the first amendment. The Act provides eleventh and twelfth grade secondary school students with the opportunity to obtain high school credit by taking courses at an "eligible institution." The purpose of the Act is "to promote rigorous academic pursuits and to provide a wider variety of options to high school pupils by encouraging and enabling secondary pupils to enroll full-time or part-time in non-sectarian courses or programs in eligible post-secondary institutions." § 123.3514, Subd. 2. An "eligible institution" is defined as "a Minnesota public post-secondary institution or a private, residential, two-year or four-year, liberal arts, degree-granting college or university located in Minnesota." § 123.3514, Subd. 3. A student participating in the program need not pay the institution for credits earned and applied towards secondary school graduation requirements. § 123.3514, Subd. 7. The state, through the Department of Education, must reimburse the institution for the credits under a formula provided for in the statute. See § 123.3514, Subd. 6. The amount paid to the institution is subtracted from the general education aid paid to the pupil's resident educational district. Id. From 1985 to 1989, an average of 93.8 percent of students participating in the program have chosen to attend public institutions. (Affidavit of Jesse W. Lewis at 4a).

Eight colleges and universities ("CUs") who have accepted students under the program remain defendants in this case. Each of the defendant's presidents have submitted affidavits which can be summarized, to the extent they are similar, as follows:

(1) the institutions, excepting Bethel College, admit PSEOA and non-PSEOA students without regard to creed;

(2) the institutions make no attempt to indoctrinate or proselytize PSEOA or non-PSEOA students;

(3) the institutions do not enforce adherence to a religious dogma by PSEOA students or by non-PSEOA students;

(4) the institutions do not require PSEOA students, non-PSEOA students, faculty, administration or staff to attend religious services or exercises;

(5) none of the institutions have a policy encouraging professors to start each class with a prayer;

(6) the institutions admit high school students pursuant to the PSEOA only if they demonstrate academic excellence and personal maturity through their high school record, activities and personal references;

(7) the institutions follow the 1940 Statement of Principles on Academic Freedom of the American Association of University Professors and in accordance with those principles all courses are taught according to the academic requirements which are intrinsic to the subject matter, and the individual teacher's concept of professional standards;

(8) the institutions do not permit PSEOA students to take religion or theology courses;

(9) neither the structure of courses nor content of subjects taught at the institutions is controlled by the church or denomination affiliated with the respective institution.²

The court need not consider the characteristics of defendant Northwestern Bible College for purposes of the instant motions. The court has been informed by the parties that an agreement to dismiss Northwestern from this case has been reached and that one of the requirements of that agreement is that Northwestern cease accepting any students under the PSEOA program at least until such time as the statute is upheld as constitutional. Although plaintiff argued during the hearing on this motion that Northwestern should be considered for the present motion on the grounds that Northwestern may at some future time again accept students under the program, the court concludes that plaintiff's claim involving Northwestern is now moot. If Northwestern does again accept students under the program, plaintiff may renew his claim against Northwestern at that time.

In his memorandum in support of his summary judgment motion, plaintiff identified a number of characteristics of the CU's which the court finds both undisputed, except as indicated below, and relevant to the instant motions.

Defendant Macalester College ("Macalester") is affiliated with the Presbyterian (USA) Church. (Affidavit of Roger G. Marks, Exh. 19, p. 5). Macalester's prospectus provides in pertinent part that: "Church-college ties are still strong, still meaningful today. The values which underlie Macalester's century-long traditions are drawn directly from its heritage. But from the beginning, Macalester has been a college that fosters spiritual growth among people of many religions and beliefs; all are welcome." Id. (emphasis added). Faculty hiring decisions are not based on religion. (Affidavit of Robert Gavin, Jr., at para. 8). No classes taken by PSEOA students are started with a prayer. Id. at para. 12. The college's classrooms do not contain any religious symbols or images. Id. Macalester receives no funds from the Presbyterian Church. (Macalester's Answer to Interrogatory No. 5). Two of Macalester's trustees, officers or deans are ordained ministers. Id. No. 10. There is no requirement that any of its governing board members be Presbyterian. Id. No. 11. One of the thirty-two trustees is a church official. Six ordained ministers are on Macalester's payroll. Id. No. 13. Faculty are hired and promoted regardless of creed. Id. No. 14. There is no prohibition against wearing religious garb at Macalester. Id. No. 25.

Defendant Hamline University ("Hamline") is affiliated with the United Methodist Church. Hamline has a commitment to maintain a strong tie with the United Methodist Church. (Affidavit of Roger G. Marks, Exh. 20, p. 5). Commencement exercises at Hamline include invocations and benedictions. Id., Exh. 9. Faculty hiring decisions at Hamline are not made on the basis of the applicant's religion. (Affidavit of Larry Osnes at para. 9). Hamline received $41,995.04 from the Methodist Church during 1985-86. (Hamline Answer to Interrogatory No. 5). Twelve of Hamline's officers, deans or trustees are ordained ministers. Id. No. 10. Twelve of the forty-six governing trustees are church officials. Id. No. 11. Three Methodist ministers, one Jewish Rabbi, and one Presbyterian minister are on Hamline's payroll. Id. No. 13. Classrooms do not contain religious symbols. Id. No. 16. Hamline has no church or chapel buildings on campus. There is a chapel lounge in the student center building used as a multipurpose room. Id. No. 20. There is no prohibition against wearing religious garb at Hamline. Id. No. 25.

Defendant Augsburg College ("Augsburg") is a four-year liberal arts college of the American Lutheran Church. (Affidavit of Roger G. Marks, Exh. 10, p. 1.1.1) Augsburg's catalog for 1984 to 1986 provides that "the mission of Augsburg College is to educate students through a distinctive combination of commitment to the christian faith, the liberal arts and excellence in academic program." Id., Exh. 21, p. 3. For over 100 years, Augsburg has emphasized intellectual freedom. Id. "Education at Augsburg is based on the belief that the world is God's entrusted to us for care, exploration and understanding." Id. The Augsburg College Faculty Handbook provides in pertinent part that:

Augsburg is a liberal arts college utilizing the resources of its urban location to prepare persons with leadership potential to serve, in the spirit of Jesus, the human needs of a changing society.

....

This means that the goal of Augsburg is to produce graduates who will utilize their education for genuine service to human kind, and that this service will be rendered in the spirit of Jesus, which spirit hopefully inspires and permeates the life of the college as an institution owned and supported by a christian community.

Id., Exh. 10, p. 1.0.1. Faculty members are expected to be sympathetic to the purposes and goals of Augsburg. Id., p. 9.0.3.

This does not mean that a prospective appointee should be excluded on the basis of his religious commitment, but that minimally, the faculty member affirmatively accept the propriety of the tasks which the college has set for itself and participate agreeably within the milieu of this christian heritage and philosophy.

Id.; see also Answer to Interrogatory No. 14 ("faculty qualifications do not include a particular religious affiliation"). Augsburg's commencement program includes an opening...